Commonwealth v. One 1979 Lincoln, Four Door Sedan

496 A.2d 397, 344 Pa. Super. 171, 1985 Pa. Super. LEXIS 7479
CourtSupreme Court of Pennsylvania
DecidedJune 7, 1985
Docket372
StatusPublished
Cited by19 cases

This text of 496 A.2d 397 (Commonwealth v. One 1979 Lincoln, Four Door Sedan) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. One 1979 Lincoln, Four Door Sedan, 496 A.2d 397, 344 Pa. Super. 171, 1985 Pa. Super. LEXIS 7479 (Pa. 1985).

Opinions

WICKERSHAM, Judge:

The instant appeal is a result of a civil action brought by the Commonwealth for forfeiture of One 1979 Lincoln, four door sedan, owned by Duane K. Kerstetter, appellant herein.

On June 15, 1982, appellant’s vehicle was seized by agents of the Bureau of Narcotics Investigations and Drug Control and a petition for forfeiture of same was filed by the Commonwealth seventy-two (72) days thereafter. Seizure of appellant’s vehicle was made incident to his arrest. In its petition, the Commonwealth alleged as its basis for forfeiture that the seized vehicle was used to transport appellant to the residence of Thomas C. Pollock, Union Township, Mifflin County, where, in conspiracy with others, a clandestine laboratory had been established with intent to manufacture methamphetamine. Appellant used his 1979 Lincoln to deliver aspirins, vaseline, sandwiches, and coffee to his co-conspirators who manufactured the controlled substance throughout the night.

On September 2, 1982, the lower court issued an order directing appellant to show cause why said vehicle should not be forfeited. A hearing was held on October 25, 1982 and forfeiture was directed. Exceptions were dismissed on August 25, 1983 and appellant filed this timely appeal. We affirm.

Initially, appellant claims that the petition for forfeiture filed by the Commonwealth was not filed “forthwith” as required by 35 P.S. § 780-128(b)(1) and (c).1 Section 780-128 provides, in pertinent part, as follows:

[174]*174(b) Property subject to forfeiture under this act may be seized by the law enforcement authority upon process issued by any court of common pleas having jurisdiction over the property. Seizure without process may be made if:
(1) The seizure is incident to an arrest or a search under a search warrant or inspection under an administrative inspection warrant;
(c) In the event seizure without process occurs, as provided herein, proceedings for the issuance thereof shall be instituted forthwith. (Emphasis added)

Act of April 14, 1972, P.L. 233, No. 64, § 28, eff. June 14, 1972.

Appellant finds it “difficult” to accept a delay of seventy-two (72) days as complying with the statute’s mandate that proceedings be instituted “forthwith.” The Commonwealth looks to the interpretation of “forthwith” in Commonwealth v. One 1976 Oldsmobile Cutlass Supreme, 85 Pa. Commw. 433, 482 A.2d 686 (1984):

This Court has previously defined the term ‘forthwith’ as it was used in the Vehicle Code. ‘We never have construed the “forthwith” requirement to fix an arbitrary time limit; rather, we have held that ... compliance within a reasonable time is sufficient.’ Department of Transportation, Bureau of Traffic Safety v. Passerella, 42 Pa. [Commw.] 352, 354, 401 A.2d 1, 2 (1979). ‘[A]bsent a showing of prejudice, the mere passage of time ... is not sufficient justification to set aside the action____’ Department of Transportation, Bureau of Safety v. [175]*175Lea, 34 Pa. [Commw.] 310, 312, 384 A.2d 269, 270-71

(1978) . We find this definition equally applicable here. Id. at 435, 482 A.2d at 687-88 (footnote omitted).

The commonwealth court continued, stating:

[T]he eighty-two day delay was reasonable and no real prejudice to [appellant] resulted. The prejudice which [appellant] claims is the loss of the use of his car but, as we said in One 1965 Buick 4 Door Sedan v. Commonwealth, 46 Pa. [Commw.] 189, 191, 408 A.2d 157, 158 (1979) , ‘that is the same “prejudice” suffered by every person that uses his car to facilitate illegal drug activity. Moreover, such “prejudice” is ... solely a result of ... illegal use of the car.’

Id. at 436, 482 A.2d at 688 (emphasis added) (footnote omitted).

Similarly, the decisions of Commonwealth v. One 1965 Rambler Sedan, 6 Pa. D. & C.3d 603 (1977) (where the time that elapsed between the seizure and the filing of the forfeiture petition was forty-seven days) and Commonwealth v. One 1966 Porche Coupe, 97 Dauphin 243, 245 (1975) (in which the elapsed time was a three week delay between seizure of the vehicle and the filing date of a forfeiture petition) indicate that the seventy-two (72) day delay in the instant case was not unreasonable. It is noted that appellant suffered no “prejudice”; in fact, the court ordered the return of the vehicle to appellant pending a final hearing.

Additionally, appellant further raises issue as to the tardiness of the actual hearing on the petition, which was not held until one hundred thirty-two (132) days following its filing.2 In One 1965 Buick 4 Door Sedan v. Commonwealth, 46 Pa.Commw. 189, 408 A.2d 157 (1979), the court quoting the Honorable James E. Rowley, Jr. (now of this court) from orders of the Common Pleas Court, Beaver County, stated: “Whatever the reason, however, the burden [176]*176was on respondent to establish the lack of any activity was for some improper purpose and/or that he has been prejudiced, i.e., harmed in some way.” Id. at 191, 408 A.2d at 158. Appellant fails to show any “improper purpose” or “prejudice” in the instant forfeiture action.

We next address the central issue to this appeal: whether there were proper factual and legal grounds to effectuate a seizure and forfeiture of appellant’s vehicle. The court is guided in its reasoning by the written framework of the Controlled Substance, Drug, Device and Cosmetic Act of April 14, 1972, P.L. 233, No. 64, § 28 (35 P.S. 780-128(a)).

This Act, as amended December 4, 1980, P.L. 1093, No. 186, § 3, provides for forfeiture of:

(1) All drug paraphernalia, controlled substances or other drugs which have been manufactured, distributed, dispensed, or acquired in violation of this act.
(2) All raw materials, products, and equipment of any kind which are used, or intended for use in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substance or other drug in violation of this act.
(3) All property which is used, or intended for use, as a container for property described in clause (1) or (2) of this subsection.
(4) All conveyances, including aircraft, vehicles, or vessels, which are used or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property described in clause (1) or (2).

35 P.S. 780-128(a) (emphasis added).

In application of this statute, the lower court made, inter alia, the following findings of fact and conclusions of law:

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Commonwealth v. One 1979 Lincoln, Four Door Sedan
496 A.2d 397 (Supreme Court of Pennsylvania, 1985)

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Bluebook (online)
496 A.2d 397, 344 Pa. Super. 171, 1985 Pa. Super. LEXIS 7479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-one-1979-lincoln-four-door-sedan-pa-1985.